No Acts & Articles mentioned in this case
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No. 856 of 2019
Gopal Krishna Patar @ Raja Peter, son of late Khetra Mohan Patar,
resident of village- Kamarhappa, PO-Ulidih, PS-Tamar, District-
Ranchi, Jharkhand ... Appellant
Versus
Union of India, through National Investigating Agency, New Delhi
... Respondent
----------
(Heard in the Court on 29
th
March 2022 & through V.C on 30
th
March 2022)
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant : Mr. Jitendra Singh, Sr. Advocate
Mr. Abhishek Kumar, Advocate
Mr. Satish Kumar Keshri, Advocate
For the NIA : Mr. Amit Kumar Das, Spl. PP
Ms. Zeenat Mallik, PP
----------
J U D G M E N T
C.A.V on 30
th
March 2022 Pronounced on 5
th
April 2022
Per, Shree Chandrashekhar, J.
Gopal Krishna Patar @ Raja Peter has filed this criminal
appeal under section 21 of the National Investigation Agency Act,
2008 (in short, NIA) against the order dated 3
rd
August 2019
passed by the Judicial Commissioner-cum-Special Judge, NIA at
Ranchi in Misc. Cr. Application No. 757 of 2019. By the said order,
the Special Judge (NIA) rejected the application seeking bail to the
appellant in connection to Special (NIA) 1 of 2017 – that was fourth
attempt by the appellant in NIA Court.
2. The appellant is in custody since 9
th
October 2017.
3. This criminal appeal was filed on 26
th
August 2019 but
as the proceedings would reveal the matter was not prosecuted on
behalf of the appellant for more than 2 years. By virtue of an order
of assignment dated 24
th
August 2021, this criminal appeal was
listed before us for the first time on 31
st
January 2022.
4. A crime was registered at Bundu PS on the statement of
2 Criminal Appeal (DB) No. 856 of 2019
Nand Kishore Yadav who had driven Ramesh Singh Munda on a
vehicle (Tavera) to S.S. High School, Bundu at around 12:15 hrs.
on 9
th
July 2008, where he was assassinated by unknown
criminals – 3 more persons lost their lives in the incident.
5. The case of the prosecution is that on the information
supplied by Sheshnath Singh Kharwar who was one of the
bodyguards of Ramesh Singh Munda the Maoists came at S.S.
High School, Bundu where Ramesh Singh Munda was invited in a
prize distribution ceremony. The informant saw that three Maoists
carrying weapons moved towards the bodyguards of Ramesh Singh
Munda who were standing in the corridor adjacent to the hall of
the school where the programme was organized. One of the
Maoists first fired in the air and then they all started firing at
Shivnath Minz and Khurshid Alam, the guards. The informant who
at that time was in Tavera on which Ramesh Singh Munda had
come to the school could see that the Maoists continued firing for
three to five minutes and then left the scene of crime shouting
slogans “Maowadi Zindabad”. He saw gunshot injuries on
Shivnath Minz, Khurshid Alam and the unknown boy – Ramesh
Singh Munda had suffered multiple gunshot injury. All four
persons were taken to Ranchi Institute of Medical Sciences by
Bundu police where the doctors declared them brought dead. The
informant claimed that he could recognize 3 persons who were
around 25 years of age and wearing raincoats, amongst
10-12 other persons who were involved in the occurrence.
6. In Bundu PS Case No. 65 of 2008 which was
lodged against unknown assailants, a charge-sheet was filed on
25
th
October 2008 against Dileshwar Mahto, Bindu Devi, Mahadev
Oraon and Mahendra Oraon while investigation against other
accused was kept pending. The charge-sheet dated 25
th
October
2008 gave rise to Sessions Trial No. 50 of 2009 which according to
the appellant ended in acquittal of all four accused vide judgment
dated 1
st
September 2010. The Crime Investigation Department
(in short, CID) which took over the investigation from local police
filed 1
st
supplementary charge-sheet on 30
th
November 2009
3 Criminal Appeal (DB) No. 856 of 2019
against Balram Sahu while investigation against Kundan Pahan,
Radhe Shyam Badaik, Ram Mohan Singh Munda, Santosh Munda,
Mahesh Munda, Pawan Singh Munda and other unknown accused
remained pending – on this Sessions Trial No. 77 of 2010
commenced.
7. 2
nd
supplementary charge-sheet came to be filed on
30
th
September 2016 against Kundan Pahan, Radhe Shyam
Badaik and Ram Mohan Singh Munda stating therein that the
investigation in respect of Pawan Singh Munda, Santosh Munda,
Mahesh Munda, Tulsi Das, Jakaria, Binod, Gurua Munda and
against other unknown accused was pending. This
2
nd
supplementary charge-sheet led to Sessions Trial No. 310 of
2016 in which the aforesaid three persons were put on trial.
8. At this stage, by an order dated 29
th
May 2017 offences
under the Unlawful Activities (Prevention) Act, 1967 (in short,
UAPA) were added and NIA was directed by the Central
Government vide order dated 28
th
June 2017 to investigate the
case. Pursuant thereto, NIA registered R.C-11/2017/NIA/DLI
which contained additional charges under sections 18, 20 and 38
of UAPA and section 17 of the Criminal Law (Amendment) Act.
After having taken over charge of the case, NIA issued notice to the
appellant on 13
th
September 2017 for his appearance and carried
out search at his premises on 8
th
October 2017. According to NIA,
the appellant was arrested on 9
th
October 2017 which is disputed
by him and he took a stand that he was arrested on 8
th
October
2017 and coerced to sign the seizure-memo. The premises of
the appellant was again searched on 12
th
October 2017 and
13
th
October 2017 and in course of the aforesaid searches several
incriminating materials and letters written by the appellant were
seized.
9. 3
rd
supplementary charge-sheet was filed on 31
st
March
2018 by which the appellant has been sent up for trial. In the
charge-sheet, specific allegations of committing offences under
section 302 read with section 120B of the Indian Penal Code,
sections 16, 17, 18 and 20 of UAPA and section 25 (1B) of the
4 Criminal Appeal (DB) No. 856 of 2019
Arms Act are made against him. However, by an order dated
21
st
August 2018, charges only under section 302 read with
section 120B of the Indian Penal Code and under sections 16, 18
and 20 of UAPA have been framed against the appellant. We are
informed that all pending sessions trials are merged together and
renumbered as Special (NIA) 1 of 2017. Now the trial has
commenced against 15 accused as out of 18 accused, Ghashi Ram
Munda, Pawan Lohra and Tulsi Das have since died.
10. The order dated 3
rd
August 2019 passed in Misc. Cr.
Application No. 757 of 2019 takes note of the following materials
produced by NIA:
“The N.I.A has disclosed a number of incriminating
materials against the petitioner accused Gopal Singh Patar
which are as under:
●Deposition of three witnesses namely P.W.1 Ram
Mohan Singh Munda, PW.2 Santosh Burma @ Tipru &
PW.3 Nand Kishore Yadav has been recorded during
course of trial.
●Letter No. RC-11/2017/NIA/DLI/CFSL/330 dated
09.02.2018 of Superintendent of Police, NIA, Raipur
forward to CFSL Chandigarh together with Specimen
handwriting of Gopal Krishna Patar.
●Disclosure Memo dated 20.8.2017 (1335-1430 hours)
towards the facts disclosed by accused Ram Mohan Singh
Munda @ Mochhu @ Bhagat @ Pragati @ Ram Mohan.
●Disclosure Memo dated 20.8.2017 (1240-1330 hours)
towards facts disclosed by Balram Sahu @ Bolo @ David.
●Further disclosure Memo dated 20.8.2017 (1555-1625
hours) towards the facts disclosed by Balram Sahu.
●Pointing out Memo dated 20.8.2017 (1440-1550 hours)
and the sketch map towards the pointings at the instances
of accused Balram Sahu @ Bolo @ David and Ram Mohan
Singh Munda @ Pragati @ Bhagat @ Mochhu.
●Certified copy of CFSL, CBI Letter bearing File No.
CFSL-2017/FPD-1163/4121 dated 21.11.2017 enclosing
Forensic Psychological Assessment Report and Layered
Voice Analysis Report No.CFSL-2017/FPD-1163 dated
21.11.2017 of the petitioner accused.
●Two letters written to elder brother dated 22.1.2000 and
without date (2
nd
letter).
●One letter written to elder sister dated 12.4.1998.
●One letter of MCCI addressed to K.K. Kedia and Ashok
Agrawal dated 25.12.2008. Letter no.12 which containing
name and contact number of Kundan Pahan back side of
the paper.
●PW.129 Umesh Machhua son of late Leeladhari
Machhua, village & P.O Baredih, PS Tamar, District Ranchi.
●On the basis of confessional statement of Ram Mohan
Singh Munda and Kundan Pahan indicating the
involvement of the petitioner in the commission of offence.”
5 Criminal Appeal (DB) No. 856 of 2019
11. Mr. Jitendra Singh, the learned Senior counsel for the
appellant, has raised three-fold contentions to seek bail for the
appellant: (i) there is no direct evidence on complicity of the
appellant in murder of Ramesh Singh Munda (ii) materials which
NIA seeks to use against the appellant such as confession of the
co-accused, voice analysis test, forensic report of the weapons
seized in connection to other cases are not admissible in evidence
and (iii) long incarceration of the appellant and no reasonable
possibility of the trial concluding in the near future would trample
his rights under Article 21 of the Constitution of India.
12. The learned Senior counsel for the appellant has relied
on the following judgments to find support to the above
contentions raised on behalf of the appellant:
(i) “State through superintendent of police, CBI/SIT v. Nalini &
Ors.”
1
,
(ii)“Jayendra Saraswathi Swamigal v. State of T.N.”
2
,
(iii) “Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav
& Anr.”
3
,
(iv) “Selvi & Ors. v. State of Karnataka”
4
,
(v) “Central Bureau of Investigation v. Ashok Kumar Aggarwal &
Anr.”
5
,
(vi) “Union of India v. K. A. Najeeb”
6
,
(vii) “Ashim alias Asim Kumar Haranath Bhattacharya alias Asim
Harinath Bhattacharya alias Aseem Kumar Bhattacharya v.
National Investigation Agency”
7
, and
(viii) “Sanjay Jain v. The Union of India through the
Superintendent of Police, NIA”
8
.
13. The learned counsel for NIA has relied on the following
judgments to oppose this criminal appeal for bail:
(i) “Kalyan Chandra Sarkar ”
3
,
1 (1999) 5 SCC 253
2 (2005) 2 SCC 13
3 (2005) 2 SCC 42
4 (2010) 7 SCC 263
5 (2013) 15 SCC 222
6 (2021) 3 SCC 713
7 (2022) 1 SCC 695
8 [Cr. Appeal (DB) No.222 of 2019]
6 Criminal Appeal (DB) No. 856 of 2019
(ii) “State of Maharashtra v. Damu S/o Gopinath Shinde & Ors.”
9
,
(iii) “Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav
& Anr.”
10
,
(iv) “Chandrakeshwar Prasad alias chandu babu v. State of Bihar
& Anr.”
11
, and
(v) “Mahipal v. Rajesh Kumar alias Polia & Anr.”
12
.
14. Placing heavy reliance on “Kalyan Chandra Sarkar”
10
,
Mr. Amit Kumar Das, the learned counsel for NIA, vehemently
argued that in the earlier proceedings the High Court recorded a
specific finding as to the existence of prima facie case against the
appellant and, therefore, to reconsider the earlier order rejecting
prayer for bail made by the appellant in Criminal Appeal (DB)
No. 678 of 2018 some fresh material(s) either factual or legal must
be shown to the Court. On the other hand, on behalf of the
appellant, it is contended that the rule of finality does not apply to
the bail petitions and moreover an order which does not reflect
consideration of the materials against the accused for recording the
existence of prima facie case would not be an order as envisaged by
the Hon'ble Supreme Court in “Kalyan Chandra Sarkar”
10
.
15. Voluminous records by way of three supplementary
affidavits containing more than 200 pages each have been
produced by the appellant. On behalf of the appellant, written
arguments running into 20 pages and a long list of judgments have
also been filed. NIA has also filed brief written submissions and
relied on few judgments. We have recorded all this because we are
not required to look into each page of the records produced in the
present proceeding and would consider only those aspects on
which arguments were made on behalf of both sides.
16. The learned Senior counsel for the appellant would
submit that none of the prosecution witnesses in his statement
under section 161 of the Code of Criminal Procedure including
A5 Balram Sahu whose confessional statement was recorded on
9 (2000) 6 SCC 269
10 (2004) 7 SCC 528
11 (2016) 9 SCC 443
12 (2020) 2 SCC 118
7 Criminal Appeal (DB) No. 856 of 2019
23
rd
August 2009 and PW1 Ram Mohan Singh Munda whose
confessional statement was recorded on 1
st
April 2016 and
13
th
April 2016 has indicated involvement of the appellant in the
crime and after about 9 years of registration of Bundu PS Case
No. 65 of 2008 on the basis of some letters allegedly seized from
the premises of the appellant and the confessional statement of
other co-accused the appellant has been falsely implicated in the
case labeling him as the mastermind.
17. In his statement under section 164 of the Code of
Criminal Procedure, PW1 stated that the appellant is the
mastermind behind the crime. He sought support of CPI (Maoist)
to win the Assembly by-election to fulfill his aspirations to enter
politics. On the direction of Kundan Pahan, Balram Sahu called
the appellant to Birbanki forest area where the appellant along
with two others came in the 3
rd
and 4
th
week of June and a meeting
took place between the appellant, Kundan Pahan and three other
Maoists. The appellant agreed to pay Rs.5 crores and provided
AK-47 rifle for executing the plan to assassinate Ramesh Singh
Munda, a sitting MLA of Jharkhand Assembly. On 8
th
July 2008,
Kundan Pahan revealed to PW1 that Vivek Ji and Manish Da have
issued instructions to kill Ramesh Singh Munda. Then he
accompanied Kundan Pahan, Ghashi Ram Munda and Tulsi Das @
Vishal and came to the house of Bindu Devi, who was later on
acquitted in Sessions Trial No. 50 of 2009, where he found that the
appellant along with Jai Ganesh and Sonu were present. The
appellant gave Rs.3 crores to Kundan Pahan and assured him that
the remaining Rs.2 crores shall be paid after murder of Ramesh
Singh Munda. The appellant handed over a slip containing mobile
number of Sheshnath Singh Kharwar who would provide
informations regarding movement of Ramesh Singh Munda. He
has further stated that Kundan Pahan called Bhajo Hari Singh
Munda around 07:30 PM and asked him to collect the money.
After Ramesh Singh Munda was assassinated, Kundan Pahan
asked Balram Sahu to contact the appellant for the balance sum of
8 Criminal Appeal (DB) No. 856 of 2019
Rs.2 crores who called him at Sun Temple, Bundu on 11
th
July
2008 and delivered the rest amount to Sonu and Rajesh Machhua.
18. We are informed that by now eight prosecution
witnesses have been examined in the trial and evidence of PW9
who was the second investigating officer in the case has been
recorded on 21
st
March 2022. PW1 has stated the facts starting
from planning to execution; PW2 who also turned approver stated
about the appellant meeting with Naxals and the discussions
about how to execute the plan; PW3 who is the informant is
naturally an important witness; PW4 stated about conspiracy with
Kundan Pahan and others; PW5 was the shopkeeper at Bundu
who was forced to give information about movement of Ramesh
Singh Munda; PW6 who was running a hotel at Bundu deposed
about utterances and grudge of the appellant against Ramesh
Singh Munda and; PW7 who was a student and forced to become a
member of Maoist gang has spoken about participation of other
accused in the crime – PW4, PW5, PW6 and PW7 are the protected
witnesses.
19. The learned counsel for NIA submitted that these seven
witnesses who have been examined in the trial have provided
sufficient support to the prosecution case against the appellant. It
is contended that during extensive cross-examination in which
more than 200 questions were posed to the witnesses still they
remained firm to their ground on complicity of the appellant in the
crime. We have, however, adopted a cautious approach and just
glanced through examination-in-chief of these witnesses and find
that evidence has come against the appellant the sufficiency of
which for conviction can be examined by the Special Judge at the
end of the trial.
20. Section 145 of the Indian Evidence Act, 1872 enables
the cross-examiner to use any former statement of the witness but
it cautions that “if it is intended to contradict the witness the
cross-examiner is enjoined to comply with the formality prescribed
therein”. The statements of PW1 under sections 161 and 164 of the
Code of Criminal Procedure were usable by the defence to
9 Criminal Appeal (DB) No. 856 of 2019
contradict him against the statement given by him in the
examination-in-chief. Not just in passing, we would indicate that a
former statement though seemingly inconsistent with the evidence
need not necessarily be sufficient to amount to contradiction and
only such of the inconsistent statement which is liable to be
contradicted “would affect the credit of the witness”. Therefore, to
contradict a witness must be to discredit the particular version of
the witness and as held in “Tahsildar Singh v. State of U.P”
13
unless
the former statement has the potency to discredit the present
statement even if the latter is at variance with the former to some
extent it would not be helpful to contradict that witness. However,
we must stay away from scrutinizing the evidence tendered by PW1
in the Court and would again indicate that what is the effect of
answers elicited by the defence in the cross-examination of PW1
shall be evaluated by NIA Court. At this stage, suffice it would be
record that the evidence tendered by PW1 cannot be ignored while
deciding the present criminal appeal for bail.
21. The learned Senior counsel for the appellant would refer
to paragraph no. 33 in “Ashok Kumar Aggarwal”
5
to challenge
truthfulness of the evidence of PW1 on the ground that PW1 is
accused in several criminal cases and since he has been granted
pardon just in one case he may not be able to come out of the
clutches of the police pressure. Mr. Amit Kumar Das, the learned
counsel for NIA, would however submit that a glance at the
testimony of PW1 would reveal that after serious thought and due
repentance PW1 realized that it is better to reveal all the details of
the crime, and it is not that out of fear or any kind of duress,
pressure or inducement that PW1 turned approver and came to the
Court as the prosecution witness.
22. The antecedent of a prosecution witness may become
relevant for shaking his credibility but as provided under
section 153 of the Indian Evidence Act it is only a co-lateral or
incidental matter on which his evidence is tabooed. PW1 who was
an accused in the present case became an approver and deposed
13 AIR 1959 SC 1012
10 Criminal Appeal (DB) No. 856 of 2019
in the Court on behalf of the prosecution. Illustration (b) to
section 114 of the Indian Evidence Act provides that an accomplice
is unworthy of credit unless he is corroborated in material
particulars. However, section 133 of the Indian Evidence Act
provides that an accomplice shall be a competent witness and a
conviction is not illegal merely because it is based on
uncorroborated testimony of an accomplice. A conjoint reading of
illustration (b) to section 114 and section 133 of the Indian
Evidence Act would indicate that there is no prohibition in law to
base conviction on uncorroborated testimony of an accomplice.
23. After “The King v. Baskerville”
14
, the rule of
corroboration which was in practice since long became almost a
rule of law. Lord Reading, C.J. wrote that there is no doubt that
the uncorroborated evidence of an accomplice is admissible in law
and the Court will not quash the conviction merely upon the
ground that the accomplice's testimony was uncorroborated.
“Baskerville”
14
held sway in its time and the opinion of the learned
Chief Justice was accepted by the Courts in India – perhaps, first
in “Rameshwar v. State of Rajasthan”
15
. Now the law is well settled
that evidence of an accomplice in the Court is given the same
weight as any other witness but as a rule of prudence the Court
may look for evidence which would lend assurance to the
testimony of an accomplice. NIA boasts that it has collected
abundance of materials to support and corroborate PW1.
24. Besides PW1 Ram Mohan Singh Munda who turned
approver, Balram Sahu and Kundan Pahan who are arrayed as
accused gave their confessional statements under section 164 of
the Code of Criminal Procedure. According to NIA, the real story
behind murder of Ramesh Singh Munda and the plan hatched by
the appellant became known to the prosecution when Kundan
Pahan made several startling revelations after he agreed to accept
the Surrender Policy of the State of Jharkhand in the year 2016
and laid down arms before the police. He was taken on remand in
this case and while he was in judicial custody an application was
14 (1916) 2 K.B. 658
15 AIR 1952 SC 54
11 Criminal Appeal (DB) No. 856 of 2019
moved by NIA to record his statement under section 164 of the
Code of Criminal Procedure. Mr. Jitendra Singh, the learned
Senior counsel for the appellant, has challenged the confessional
statement of Kundan Pahan by drawing our attention to the
affidavit filed by Kundan Pahan in the Court of Judicial
Commissioner at Ranchi wherein he stated that he was not willing
to make confession before the Magistrate. Mr. Amit Kumar Das,
the learned counsel for NIA, states that a Magistrate was sent to
the jail to ascertain willingness of Kundan Pahan for recording his
statement under section 164 of the Code of Criminal Procedure
and only after having satisfied himself about genuineness of
willingness of Kundan Pahan the Court recorded his statement on
17
th
November 2016.
25. The act of recording confessions under section 164 of
the Code of Criminal Procedure is a solemn act and in discharging
this duty the Magistrate is required to see that the requirements of
section 164 of the Code of Criminal Procedure are fully satisfied. If
it appears to the Court that the confession has been caused by any
inducement, threat or promise it must be excluded and rejected
brevi manu.
26. Some say that the use of confession in law was since
the times of Tudors and Stuarts. Lord Sumner observed that the
rules of common law relating to confessions are “as old as Lord
Hale” [refer, “Ibrahim v. Empror”
16
]. Generally speaking a
confession is an admission of a person charged with the offence
that he has committed the crime. The Latin phrase “optimum
habemus testem confitentem reum” which means “we have the best
witness, a confessing defendant” was the guiding thought in the
earlier years.
27. The first full and clear exposition of the rule came in
“The King v. Warickshall”
17
which ruled that, “it is a mistaken
notion that the evidence of confessions and facts which have been
obtained from prisoners by promises or threats, is to be rejected
16 AIR 1914 PC 155
17 (1783), 1 Leach 263 (168 English Reports 234)
12 Criminal Appeal (DB) No. 856 of 2019
from a regard to public faith, no such rule ever prevail”. Jane
Warickshall was charged with receiving stolen goods which were
found in her bed. The defence put forth on her behalf was that as
the fact of finding the stolen property in her custody was obtained
through the means of an inadmissible confession the proof of that
fact ought also to be rejected. It was in those facts that the Court
observed that “confessions are received in evidence, or rejected as
inadmissible, under a consideration whether they are or not
entitled to credit”.
28. A century after “Warickshall”, the Queen's Bench
through Cave, J. observed that: “..... by that law, to be admissible,
a confession must be free and voluntary. If it proceeds from
remorse and a desire to make reparation for crime, it is admissible.
If it flows from hope or fear, enticed by a person in authority, it is
inadmissible....”. [refer, “The Queen v. Thompson”
18
]. We would
indicate that in the common law jurisdictions “Ibrahim v. The
King”
19
is often referred to seek support from the statement of Lord
Sumner to use voluntary confessions of an accused in the trial.
29. The following was the opinion of the Privy Council
delivered by Lord Sumner:
“It has long been established as a positive rule of English
criminal law, that no statement by an accused is admissible in
evidence against him unless it is shown by the prosecution to have
been a voluntary statement, in the sense that it has not been
obtained from him either by fear of prejudice or hope of advantage
exercised or held out by a person in authority. The principle is as old
as Lord Hale.”
30. Whether the safeguards provided under section 164 of
the Code of Criminal Procedure have been followed or not when
confessional statements of co-accused including Kundan Pahan
were recorded by the Magistrate and whether evidence of PW1 as
approver which has been challenged by Mr. Jitendra Singh, the
learned Senior counsel for the appellant, with reference to the
judgment in “Ashok Kumar Aggarwal”
5
inspires confidence and the
Court can act on his evidence are all matters which have to be
argued at the time of final hearing in Special (NIA) 1 of 2017 and it
18 17 Cox's Criminal Cases 641: (1893) 2 QB 12
19 (1914) A.C 599
13 Criminal Appeal (DB) No. 856 of 2019
is for the Special Judge (NIA) to form an opinion on admissibility or
otherwise of the materials laid before him. We may, however,
indicate that even where the confessional statement of an accused
is not admissible in evidence it is not altogether a prohibited zone
and the Court can look into it to find the real story behind the
occurrence [refer, “Sandeep v. State of U.P”
20
].
31. Mr. Amit Kumar Das, the learned counsel for NIA, seeks
support from “Damu”
9
to further submit that the confessional
statement of other co-accused can be used against the appellant
also for the reason that the conditions under section 10 of the
Indian Evidence Act are satisfied in the present case.
32. In “Damu”
9
the Hon'ble Supreme Court has observed as
under:
“44. The basic principle which underlies Section 10 of the Evidence
Act is the theory of agency and hence every conspirator is an agent
of his associate in carrying out the object of the conspiracy (State of
Gujarat v. Mohd. Atik). Section 10 permits “anything said, done or
written by any one of such persons in reference to their common
intention” to be recorded as a relevant fact as against each of the
persons believed to have so conspired.”
33. For the sake of fullness, we need to revert to “Kalyan
Chandra Sarkar”
10
wherein a specific plea was raised that the
witnesses had turned hostile and there was no other material to
implicate the accused in the crime except confessional statement
of the co-accused. The Hon'ble Supreme Court rejected the plea
observing that the admissibility or otherwise of the confessional
statement and the effect of the evidence already adduced by the
prosecution and the merit of the evidence that may be adduced are
all matters to be considered at the stage of the trial.
34. In “Kalyan Chandra Sarkar”
10
the Hon'ble Supreme
Court has observed as under:
“11. The law in regard to grant or refusal of bail is very well settled.
The court granting bail should exercise its discretion in a judicious
manner and not as a matter of course. Though at the stage of
granting bail a detailed examination of evidence and elaborate
documentation of the merit of the case need not be undertaken, there
is a need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly where the
accused is charged of having committed a serious offence. Any order
devoid of such reasons would suffer from non-application of mind. It
is also necessary for the court granting bail to consider among other
20 (2012) 6 SCC 107
14 Criminal Appeal (DB) No. 856 of 2019
circumstances, the following factors also before granting bail; they
are:
(a) The nature of accusation and the severity of punishment in case
of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See
Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas.)
12. In regard to cases where earlier bail applications have been
rejected there is a further onus on the court to consider the
subsequent application for grant of bail by noticing the grounds on
which earlier bail applications have been rejected and after such
consideration if the court is of the opinion that bail has to be granted
then the said court will have to give specific reasons why in spite of
such earlier rejection the subsequent application for bail should be
granted. (See Ram Govind Upadhyay.)
………………………………………………………………………………………
………………………………………………………..
19. The next argument of learned counsel for the respondent is that
prima facie the prosecution has failed to produce any material to
implicate the respondent in the crime of conspiracy. In this regard he
submitted that most of the witnesses have already turned hostile.
The only other evidence available to the prosecution to connect the
respondent with the crime is an alleged confession of the co-accused
which according to the learned counsel was inadmissible in
evidence. Therefore, he contends that the High Court was justified in
granting bail since the prosecution has failed to establish even a
prima facie case against the respondent. From the High Court order
we do not find this as a ground for granting bail. Be that as it may,
we think that this argument is too premature for us to accept. The
admissibility or otherwise of the confessional statement and the
effect of the evidence already adduced by the prosecution and the
merit of the evidence that may be adduced hereinafter including that
of the witnesses sought to be recalled are all matters to be
considered at the stage of the trial.”
35. The learned Senior counsel for the appellant made the
following submissions to demonstrate that the materials sought to
be used against the appellant are all in the realm of conjectures
and surmises:
(i) The letter dated 22
nd
January 2000 which was written
by the appellant to his elder brother is being used by NIA to show
that the appellant had political ambitions but at that time Ramesh
Singh Munda was not even MLA.
(ii) The letter dated 12
th
April 1998 written by the appellant
to his elder sister would indicate that he had no money to engage a
good lawyer to represent him in the trial of other cases which by
that time had started.
(iii) The seizure of the letter dated 25
th
December 2008
which was written on the letter pad of MCCI demanding ransom of
Rs.25 Lakhs from K.K. Kedia and Ashok Aggarwal which was
15 Criminal Appeal (DB) No. 856 of 2019
signed by Kundan Pahan was not found by NIA when search was
conducted on 8
th
October 2017.
(iv) In his confessional statement recorded on
17
th
November 2017, Kundan Pahan on being confronted with the
letter dated 25
th
December 2008 (D-252) categorically denied that
the said letter was issued by his organization.
(v) No investigation was conducted in respect of K.K. Kedia
and Ashok Aggarwal and the letter dated 25
th
December 2008 was
not sent to the handwriting expert.
36. It is further submitted that the money trail is not
established and NIA could not recover the money which according
to the disclosure made by Bhajo Hari Singh Munda was concealed
near the river bank of Kanchi river and an extraordinary
explanation has been offered by NIA that the bag containing the
money might have been washed away due to erosion or flood,
whereas the RTI information from the Department of Home, Prison
and Disaster Management dated 13
th
August 2019 would reveal
that during the period between January 2008 to January 2019 no
information as regards any flood around Tamar and Arki blocks
was found in the records.
37. As regards arguments on hearsay evidence, we would
indicate that in certain situations hearsay evidence is also accepted
as proof of a fact [refer, “Subramaniam v. Public Prosecutor”
21
].
According to NIA, the appellant has a long list of criminal
antecedent and he was involved in as many as 10 criminal cases of
serious nature. Mr. Amit Kumar Das, the learned counsel for NIA,
submitted that may be in his early years the appellant had
financial difficulties but later on he collected huge sums of money
through extortion and other crimes and his acquittal in so many
criminal cases gives clear indication how much influence he wields
in the area and is capable of influencing the witnesses.
Mr. Jitendra Singh, the learned Senior counsel for the appellant,
denied involvement of the appellant in 10 criminal cases and stated
that in all 7 cases which were registered against the appellant he
21 (1956) 1 WLR 965
16 Criminal Appeal (DB) No. 856 of 2019
has been acquitted by the Court. But the fact remains that the
appellant who made a foray into the crime world early in his life
was involved in so many criminal cases.
38. It is submitted that the appellant allegedly provided
AK-47 rifle on 5
th
July 2008 but the same has not been recovered
and there is nothing on record to suggest that AK-47 rifle
recovered from possession of Tulsi Das on 23
rd
July 2017 in
connection to Arki PS Case No. 26 of 2014 is the same weapon.
39. According to NIA, AK-47 rifle used in the crime was
traced with the notorious outlaw of CPI (Maoist) Tulsi Das @ Vishal
and that was seized in Arki PS Case No. 26 of 2014 and
Winchester rifle and ammunitions which were carried by the house
guard Khurshid Alam on the day of the occurrence have been
recovered from the other extremists of CPI (Maoist).
40. The charge-sheet records that in connection to Arki PS
Case No. 26 of 2014, one 7.62 mm caliber AK-47 rifle with
magazine was recovered from Tulsi Das @ Vishal who died in an
encounter on 26
th
July 2014; in connection to Arki PS Case No. 07
of 2012, one 30.06 bore Winchester rifle, 46 live cartridges and one
empty case of 30.06 bore Winchester rifle were seized from Bhim @
Amus Munda; in connection to Arki PS Case No. 07 of 2012, 50
live cartridges of 30.06 bore Winchester rifle were seized from
Martin Munda. These articles and seizure-memos have been
brought on record of Special (NIA) 1 of 2017 and laid in evidence.
The reports from CFSL, Kolkata and SFSL, Ranchi have been laid
in evidence to establish that some of the empty cartridges were
fired from the seized fire-arm.
41. In the above context, we may indicate that in “State of
Rajasthan v. Daud Khan”
22
the FSL report was not conclusive in
the sense that the bullet extracted from the body of the deceased
could not definitely be linked with the recovered weapon but it was
found that the bullet was capable of being fired from the recovered
gun. The Hon'ble Supreme Court held that there was no doubt
22 (2016) 2 SCC 607
17 Criminal Appeal (DB) No. 856 of 2019
both from the medical and the ocular evidence that Daud Khan
fired shot with a gun.
42. NIA has proposed to produce a host of other
incriminating materials against the appellant. Mobile phones and
SIM cards were seized from the possession of A16 and A17 (the
appellant) and CDs and DVDs seized during search conducted at
residential premises and party office of the appellant have been
sent for examination to CDAC, Thiruvananthapuram. At the place
of occurrence, 25 rounds of 30.06 mm, 40 live rounds of
30.06 mm, 6 live ammunitions, 6 live rounds of 12 bore and one
live round of 7.62 mm which were scattered around the victims
were seized vide seizure-memo dated 9
th
July 2008. The materials
recovered during postmortem of the victims were sent to CFSL,
Kolkata and the documents seized during search conducted at the
premises of the appellant along with specimen handwriting have
been forwarded to CFSL, Chandigarh.
43. In the course of investigation, A16 and A17 had
undergone polygraph test and it is stated that on the basis of
forensic psychological assessment, behavioral analysis interview
and layered voice analysis it was inferred from their statements
that their answers on material issues were deceptive and they were
hiding some information related to the occurrence. “Selvi”
4
has
been referred to by the learned Senior counsel for the appellant to
challenge admissibility of Narco Analysis Test Report of the
appellant. In “Selvi”
4
, the Hon'ble Supreme Court held that the test
results cannot be admitted in evidence if they have been obtained
through the use of compulsion but at the same time in paragraph
no. 264 of the reported judgment it was made clear that voluntarily
administration of the “polygraph test”, “narco analysis technique”
etc. is permissible provided that certain safeguards are in place. As
would appear from the order dated 3
rd
August 2019 passed by the
Special Judge (NIA), the appellant gave his statement on
13
th
September 2017 running into 6-pages in which he expressed
his willingness to undergo “polygraph test” which he subsequently
retracted.
18 Criminal Appeal (DB) No. 856 of 2019
44. With reference to some observations in “Sanjay Jain”
8
,
the learned Senior counsel for the appellant endeavoured to
contend that no material has been produced by NIA to establish
the facts constituting the essential ingredients for the offences
under sections 16, 17 and 18 of UAPA and while so the bar under
section 43-D(5) of UAPA is not attracted in the present case.
45. Section 2(k) of UAPA provides that “terrorist act” has
the meaning assigned to it in section 15 and the expression
“terrorist organization” is defined under section 2(m). The opening
line of section 15 provides that an act done “with intent to
threaten” or “likely to threaten” (i) the unity (ii) integrity (iii)
security (iv) economic security or (v) sovereignty of India shall be a
“terrorist act”. The second part of sub-section (1) provides that any
act with intent to strike terror or which is likely to strike terror in
the people or any section of the people in India or in any foreign
country by the use of arms, ammunitions etc. as mentioned under
clause (a) which causes or is likely to cause death or injuries to
any person or persons or causes loss, damage or destruction of
property etc. would be a “terrorist act”.
46. In a prize distribution ceremony at S.S. High School,
Bundu, a sitting MLA of the Jharkhand Legislative Assembly was
assassinated in broad daylight. Four persons including the
bodyguard and house guard of Ramesh Singh Munda and a boy
were killed in the occurrence. In the charge-sheet, the prosecution
says that the murder of Ramesh Singh Munda was in series of the
killings of Mahendra Singh who was MLA from Giridih, Sunil
Mahto who was MP from Jamshedpur and son of a former Chief
Minister who was killed in October 2007. During that period, such
was the fear of Maoists that it was extremely dangerous to travel
out of Ranchi by road after sunset as they had built the “liberated
zones” around the capital city. It is stated that four hundred
security personnel and more than thousand people are killed since
the year 2000 in the fight between the State and Maoists.
According to NIA, killing of Ramesh Singh Munda which was
19 Criminal Appeal (DB) No. 856 of 2019
executed by the Maoists was one another incident intended at
creating fear and terror in the minds of the people.
47. Section 16 provides punishment for a “terrorist act”
which shall be death or imprisonment for life in case the “terrorist
act” has resulted in the death of any person and in any other case
it shall be punishable with imprisonment for a term which shall
not be less than five years but which may extend to imprisonment
for life – in both the situations the accused shall be liable to pay
fine also.
48. The relevant expressions in section 17 are that
(i) whoever provides funds (ii) knowing that such funds are likely to
be used (iii) by a terrorist organization or by a terrorist gang or by
an individual terrorist (iv) to commit a “terrorist act”
(v) notwithstanding whether such funds were actually used or not
for commission of such act. Section 18 is also widely worded as it
uses the expressions conspires, advocates, abets, advises, incites,
directs or knowingly facilitates the commission of a “terrorist act”.
There is a specific allegation against the appellant that he sought
support from CPI (Maoist), conspired with them and provided
funds and weapon to them to assassinate a sitting MLA of the area
which according to NIA was used by CPI (Maoist) to strike terror in
the minds of the local people. It is a settled proposition in law that
in a criminal conspiracy which is generally hatched in secrecy each
conspirator may play different role to achieve the common
purpose.
49. In “Damodar v. State of Rajasthan”
23
the Hon'ble
Supreme Court has observed as under:
“15. … The most important ingredient of the offence being the
agreement between two or more persons to do an illegal act. In a
case where criminal conspiracy is alleged, the court must inquire
whether the two persons are independently pursuing the same end
or they have come together to pursue the unlawful object. The former
does not render them conspirators but the latter does. For the offence
of conspiracy some kind of physical manifestation of agreement is
required to be established. The express agreement need not be
proved. The evidence as to the transmission of thoughts sharing the
unlawful act is not (sic) sufficient. A conspiracy is a continuing
offence which continues to subsist till it is executed or rescinded or
frustrated by choice of necessity. During its subsistence whenever
any one of the conspirators does an act or a series of acts, he would
be held guilty under Section 120-B of the Penal Code, 1860.”
23 (2004) 12 SCC 336
20 Criminal Appeal (DB) No. 856 of 2019
50. On the basis of the aforesaid discussions, we conclude
that it is not possible to say that the accusations against the
appellant are prima facie untrue and that the case set up by NIA
against the appellant is based on no evidence.
51. The learned Senior counsel for the appellant launched a
virulent attack on the finding of prima facie case against the
appellant recorded in Criminal Appeal (DB) No. 678 of 2018 on the
ground that without a discussion about nature of the evidence
sought to be pressed against the appellant, a satisfaction about
existence of a prima facie case against the appellant could not
have been recorded by the previous Division Bench. It is further
submitted that merely by observing that “upon taking into
consideration the materials which have been collected during
investigation by the NIA”, the Court could not have recorded its
satisfaction that the accusations against the appellant appear to
be prima facie true.
52. The argument is that since there is no evaluation of the
prosecution materials, whether these are substantive or hearsay
evidence, the dismissal of Criminal Appeal (DB) No. 678 of 2018 on
the ground that complicity of the appellant in the crime is prima
facie established would not tie the hands of this Court to take a
contrary view.
53. The relevant portions of the order dated 11
th
October
2018 passed in Criminal Appeal (DB) No. 678 of 2018 read as
under:
“8. It may also be stated at this stage, that though in the present
appeal, the appellant has also questioned the propriety of the order
dated 28.6.2017, issued by the Ministry of Home Affairs,
Government of India, handing over the investigation of the case to
the NIA, after about eight years of occurrence, but the appellant had
challenged the said order in W.P.(Cr.) No. 458 of 2017, and the said
writ petition, upon adjudication, has been dismissed by a Bench of
this Court, by Judgment dated 25.8.2018. As such, even questioning
the propriety of handing over the investigation to NIA, is now no
more available to the appellant.
9. So far as the involvement of the appellant in the gruesome
quadruple murder of sitting MLA, his two bodyguards and one
innocent boy is concerned, it has been pointed out by the learned
counsel for the NIA from the charge-sheet submitted against the
accused persons, that this appellant had high political ambitions
from the very initial stage, and during investigation, the NIA could
lay its hands on the materials to establish the following facts:-
21 Criminal Appeal (DB) No. 856 of 2019
(A) The appellant contacted CPI Maoists group (an extremist
organisation) for eliminating the sitting MLA and also backing him in
fighting the bye-election on the seat getting vacant thereby, and the
appellant contacted the dreaded maoist Kundan Pahan and other
top maoist leaders for that purpose.
(B) For eliminating the sitting MLA, the appellant had agreed to pay
Rs. 5 crore and to give one A.K.-47 rifle and ammunitions to the CPI
Maoists.
(C) On 5.7.2008, while the said Kundan Pahan was camping at
Barigada along with his associates, the aides of the appellant
delivered him one AK-47 rifle and ammunitions.
(D) Again on 8.7.2008 while said Kundan Pahan was at Baruhatu,
the appellant along with his aides went there in a white colour Tata
Dicor vehicle, and handed over the amount of Rs. 3 crores in two
bags, as advance amount to Kundan Pahan.
(E) The appellant also provided Kundan Pahan the contact number of
one bodyguard of the deceased MLA, who is also an accused in the
present case, assuring that he would provide the information about
the movement of said MLA.
(F) After the plan was executed, the remaining amount of Rs. 2 crore
was also sent to the CPI Maoists on 11.7.2008.
(G) A raid was conducted in the house of the appellant, from where
some incriminating letters were recovered by the NIA, one being
written on the pad of CPI Maoists, demanding levy from two
businessmen, and it has come in the investigation that the letter pad
was being sent to the appellant for printing the letters for demand of
levy and sending it to the business persons for collection of levy.
These materials collected against the appellant during
investigation by the NIA, clearly showed that the appellant was
having active connection with CPI Maoists for fulfilling his political
ambitions, and he got the sitting MLA eliminated, fought the bye-
election from the same seat with the backing of the CPI Maoists
group, won the election and also became a Minister in the State of
Jharkhand.
10. Learned counsel for the appellant, while arguing the case for
bail, submitted that the appellant has been falsely implicated in the
case due to political reasons, and all these materials have been
collected after eight years of the occurrence, which is of the year
2008 itself, whereas the appellant has been made accused in this
case only in the year 2017, on the basis of the confessional
statement of the co-accused. It is also submitted that the alleged
letters recovered during raid, were actually implanted, inasmuch as,
even though the raid was conducted in his house earlier also on
8.10.2017, when the entire premises of the appellant was searched,
but Criminal Appeal (D.B.) No. 678 of 2018 no recovery was made.
Learned counsel, accordingly, made the prayer for bail of the
appellant.
11. Learned counsel for the NIA, on the other hand, has opposed the
prayer for bail, pointing out the materials collected against the
appellant, as discussed above, and also submitted that Section
43(D)(5) of the Unlawful Activities (Prevention) Act, 1967, is bar to
grant bail, once prima facie case is found against the appellant.
12. Having heard learned counsels for both the sides and upon
taking into consideration the materials, which have been collected
during investigation by the NIA, we are of the considered view that
prima facie involvement of the appellant in the gruesome quadruple
murder of sitting MLA, his two bodyguards and one innocent school
boy, after entering into conspiracy with the top leaders of CPI
Maoists, an extremist organisation, cannot be ruled out at this stage,
and we are satisfied that the accusations against the appellant
appear to be prima facie true.
13. As such, no case is made out for granting bail to the appellant
and there is no illegality in the impugned order passed by the Trial
Court below, rejecting the bail application of the appellant.”
22 Criminal Appeal (DB) No. 856 of 2019
54. In “Chandrakeshwar Prasad @ Chandu Babu”
11
the
Hon'ble Supreme Court seems to approve “Kalyan Chandra
Sarkar”
10
. In “Mahipal”
12
reference has been made to “Kalyan
Chandra Sarkar”
10
in paragraph no. 26 of the reported judgment to
lay stress that the Court granting bail should exercise its
discretionary powers in a judicious manner and not as a matter of
course. These cases arose from the orders granting bail to the
accused and reference of “Kalyan Chandra Sarkar”
10
has been
made in the context of duty of the Court hearing bail petitions but
there is no doubt that “Kalyan Chandra Sarkar”
10
is still a good
law.
55. Even in “Jayendra Saraswathi Swamigal”
2
, paragraph
no. 16 of “Kalyan Chandra Sarkar”
10
has not been overruled by the
Hon'ble Supreme Court. A little later, in the same volume of the law
report one may find “Kalyan Chandra Sarkar”
3
which dealt with
paragraph no. 16 in “Jayendra Saraswathi Swamigal”
2
and
proceeded to examine the effect of aforesaid observations in
“Jayendra Saraswathi Swamigal”
2
in the following manner:
“39. The learned counsel for the respondent further contended
that this Court in Jayendra Saraswathi case having not agreed
with the law laid down in Kalyan Chandra Sarkar ought to have
overruled the said judgment in Kalyan Chandra Sarkar. We
consider this as an argument of desperation. In Kalyan Chandra
Sarkar there has been no declaration of any law made as such.
This Court only applied the requirement of Section 437(1)(i) CrPC
to the facts of the case and came to the conclusion that there
was prima facie case against the respondent, hence, cancelled
his bail. Nor has this Court in the case of Jayendra Saraswathi
made any declaration of law. In that case also based on the
facts of that case, this Court came to the conclusion that the
prosecution had not established a prima facie case as against
the accused in that case. It is while considering the judgment of
this Court in Kalyan Chandra Sarkar this Court in the case of
Jayendra Saraswathi observed:
“The observations made therein cannot have general
application so as to apply in every case including the
present one wherein the Court is hearing the matter for the
first time.”
40. It is probably based on the above observations of this Court
in the case of Jayendra Saraswathi that the learned counsel
was emboldened to submit that the Court in Jayendra
Saraswathi case having stated so ought to have overruled the
judgment in Kalyan Chandra Sarkar . Whether the judgment in
Kalyan Chandra Sarkar ought to have been overruled or not by
the Bench which delivered Jayendra Saraswathi judgment, we
are not competent to say, but certainly we are competent to say
what actually the Court stated in the said judgment of Jayendra
Saraswathi and what the Court has done in that case. In the
said case of Jayendra Saraswathi the Court only distinguished
Kalyan Chandra Sarkar. While doing so they observed:
“The case of Kalyan Chandra Sarkar was decided on its
23 Criminal Appeal (DB) No. 856 of 2019
own peculiar facts where the accused had made seven
applications for bail before the High Court, all of which were
rejected except the fifth one which order was also set aside
in appeal before this Court. The eighth bail application of the
accused was granted by the High Court which order was the
subject-matter of challenge before this Court. The
observations made therein cannot have general application
so as to apply in every case including the present one
wherein the Court is hearing the matter for the first time.”
56. We would indicate that at the time when Criminal
Appeal (DB) No. 678 of 2018 was decided the trial in Special (NIA)
1 of 2017 had not started and that seems to be the reason the
Court did not discuss each individual piece of evidence
independently. The word “prima facie” is a Latin expression which
means “at first sight” or “based on first impression”. In the order
dated 11
th
October 2018 passed in Criminal Appeal (DB) No. 678 of
2018, the Court has recorded brief facts of the case, provisions
under section 43-D(5) of UAPA, the materials collected against the
appellant, arguments raised on behalf of the appellant and few
judgments of the High Court. The requirement in law is that the
order granting or refusing bail should reflect application of mind.
Since that can be gathered from the discussions made in the
order, it is felt that the order granting or refusing bail should
contain a brief discussion about the materials the prosecution has
proposed to use against the accused. As we see, the order dated
11
th
October 2018 which takes note of all relevant considerations
for grant/refusal of bail is not a cryptic order rather it reflects
application of mind to the facts and circumstances of the case.
Whatever way one analyses the arguments advanced on both sides
this much seems to be an admitted position in law that in the
subsequent bail application(s) the accused must provide a specific
reason and grounds to overcome the hurdle created by the first
rejection. Except the stage of trial and arguments in law, nothing
has been shown to us to differ with the finding on existence of a
prima facie case against the appellant recorded in Criminal
Appeal (DB) No. 678 of 2018.
57. The learned Senior counsel for the appellant would
finally submit that NIA proposes to examine 192 witnesses and lay
in evidence 373 documents as well as 76 material exhibits in
24 Criminal Appeal (DB) No. 856 of 2019
support of the charges framed against the accused and since the
trial has progressed at snail's speed which thus would take years
to conclude, the appellant who has spent four and half years in
custody is entitled for bail. On instructions from the Investigating
Officer who was present in the Court with records of the case,
Mr. Amit Kumar Das, the learned counsel for NIA, informed the
Court that against the appellant NIA proposes to examine about
35 witnesses.
58. There is no absolute and unconditional rule of law that
only on account of a long period of incarceration the accused is
entitled for bail. There are well established principles on a
cumulative consideration of which the Court seized with the bail
application moved by an accused can form its opinion whether to
grant or not bail in the matter. Blackstone has said that; “crime is
an act committed or omitted in violation of public law forbidding or
commanding it”. On the other hand, J. Oerter stated that;
“personal liberty is the right to act without interference within the
limits of the law”. The individual liberty and societal interest come
face to face when a bail application is moved in the Court, which is
assigned this duty by law to strike a balance between the two
competing theories. And, that seems to be the reason why it is
unanimously accepted in the legal parlance that each case is
decided in the facts and circumstances of the case applying the
broad principles for grant or refusal of bail. The character,
behavior, means, position and standing of the accused [“State of
U.P. v. Amarmani Tripathi”
24
]; criminal history of the accused,
likelihood of the offences being repeated and reasonable
apprehension of course of justice being thwarted by grant of bail
[refer, “Prahlad Singh Bhati v. NCT, Delhi”
25
] are some of the factors
which are relevant for the purpose of the present criminal appeal.
59. In our opinion, the judgments referred to on behalf of
the appellant do not bear any similarity on facts with the present
case. In “K.A. Najeeb”
6
the Hon'ble Supreme Court examined the
24 (2005) 8 SCC 21
25 (2001) 4 SCC 280
25 Criminal Appeal (DB) No. 856 of 2019
ambit of Article 21 of the Constitution of India which covers within
its protective umbrella not only due procedure and fairness but
also access to justice and a speedy trial and held that when a
timely trial would not be possible and the accused has suffered
incarceration for a significant period, the rights under Article 21 of
the Constitution of India would trump the statutory restrictions on
right to bail imposed by the provisions like section 43-D(5) of
UAPA. In “Ashim”
7
hearing of the case was taking place only one
day in a month and statement of de facto complainant was still not
completed – there were 298 prosecution witnesses. In the above
contexts, the Hon'ble Supreme Court taking note of incarceration
of the accused for about 9½ years interfered in the matter and
directed release of Asim on post-arrest bail. On a consideration of
the facts and circumstances of this case, we are however of the
opinion that no case of violation of the rights of the appellant as
guaranteed under Article 21 of the Constitution of India is made
out.
60. In the end, we would say that when the trial has
progressed and several important witnesses have tendered some
evidence which can be used against the appellant and as indicated
in the charge-sheets there would be host of other incriminating
materials which NIA proposes to produce against the appellant,
keeping in mind the well settled principles for grant or refusal of
bail, such as, existence of prima facie case, gravity of the offence,
severity of punishment, antecedent of the appellant and possibility
of the appellant impeding the trial once he is released on bail, this
criminal appeal for bail cannot be entertained.
61. Criminal Appeal (DB) No. 856 of 2019 is dismissed.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated : 5
th
April 2022
R.K./Amit/Tanuj/A.F.R.
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